02

Sales Referral Partner (Independent Contractor) Agreement

PARTIES

BAMBRICK MEDIA PTY LTD (ABN: 86 112 089 102) of Level 4, 196 Wharf Street, Spring Hill, 4000, in the State of Queensland (Principal)

INDEPENDENT CONTRACTOR

BACKGROUND
  1. The Principal has requested the Independent Contractor to provide the Services to the Principal.
  2. The Independent Contractor has agreed to provide the Services to the Principal on the terms and conditions set out in this Agreement.
AGREEMENTS
  1. INTERPRETATION

1.1 Definitions

In this document:

Agreement means this agreement, including any Schedule;

Business means the business of the Principal, its Related Entities, a related person or related association;

Client means any natural person or persons, partnership, association or corporation who or which is a client of the Business;

Confidential Information means all confidential information and trade secrets of the Principal and:

(a) any techniques, methods, programs, source codes, object codes, software, materials, documents or manuals of the Principal used in its business;

(b) any information relating to the business affairs, accounts, marketing plans, prospects, research, management or finances of the Principal and any databases, data surveys, client lists, records, reports, software, any source information obtained or paid for by the Principal or other documents, material or other information whether in writing or otherwise concerning the Principal;

(c) any information whether in writing or otherwise relating to clients or prospective clients of the Principal and any documents or materials concerning clients or prospective clients of the Principal; and

(d) any information whether in writing or otherwise relating to tenders or proposals made or to be made by the Principal to its clients or prospective clients in respect of the Business of the Principal;

including any copies, which are not generally available to the public, and to which the Independent Contractor gains access or becomes aware of whether before, during or after the operation of the Agreement;

Fee means the amount specified in Item 1 of Schedule 3;

Financial Year means each year ending 30 June;

Further Term means the period specified in Item 2 of Schedule 1;

Hours means the hours specified in Item 3 of Schedule 2;

Location of Services means the location specified at Item 2 of Schedule 2;

Party means a party to this Agreement;

Referral means an introduction arranged by the Independent Contractor of the Principal to a previously unknown person or entity that results in a sale being made to that person or entity within 90 days of that introduction;

Related Entity of the Principal means an entity which is a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) of the Principal, or whose financial accounts could be incorporated with the Principal’s as part of a consolidated financial report prepared by the Principal in accordance with the relevant Australian Accounting Standards and which shares:

(a) customers with the Principal; and/or

(b) markets with the Principal; and/or

(c) suppliers with the Principal and/or

(d) Intellectual Property Rights and Confidential Information with the Principal;

Sales Commision means the amount to be paid monthly to the Independent Contractor which is calculated on net revenue received by the Principal, excluding media spend with Google or Facebook and other 3rd party disbursements or upgrades, for the Referral of a new Client, to qualify the Independent Contractor must have a minimum of 2 Referral Clients paying the Principal fees in that calendar month;

Schedule means a schedule to this Agreement;

Services means the services provided by the Independent Contractor as specified in Item 1 of Schedule 2;

Term means the period specified in Item 2 of Schedule 1.

  1. INTERPRETATION

In this Agreement, unless the contrary intention appears:

(a) the clause headings are for convenience of reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(b) words in the singular number include the plural and vice versa; (c) words importing a gender include any other gender;

(d) a reference to a person includes a partnership and a body, whether corporate or otherwise;

(e) a reference to a clause is a reference to a clause or subclause of this Agreement; (f) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;

(f) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(g) a reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to this Agreement but which is incorporated by reference;

(h) the background to this Agreement does not form part of the Agreement; (j) monetary references are references to Australian currency.

  1. APPLICATION

3.1 This Agreement will apply to the Independent Contractor with respect to the provision of the Services to the Principal, and will remain in force for the duration of the Term and, if applicable, the Further Term, unless terminated earlier in accordance with the terms of the Agreement.

  1. NATURE OF RELATIONSHIP

4.1 The Parties acknowledge that the relationship of the Parties under the terms of the Agreement is strictly one of Principal and Independent Contractor and the Independent Contractor is not intended at any time to be in a partnership or in a joint venture with the Principal, or an employee or servant of the Principal.

  1. SERVICES

5.1 The parties agree that the Independent Contractor will personally perform the Services under the terms of the Agreement and any obligations of the Independent Contractor under the Agreement will be taken to be obligations of the Independent Contractor.

5.2 The Independent Contractor will perform the Services at the Location of Services, however, the Independent Contractor acknowledges that it may be necessary for the Independent Contractor to perform the Services at other locations, as reasonably directed by the Principal.

5.3 Performance of the Services may only be delegated to another person with the express written consent of the Principal.

5.4 The Independent Contractor will perform the Services during the Hours specified in Item 3 of Schedule 2.

However, the Independent Contractor acknowledges that it may be necessary to perform Services outside the Hours and that no additional Fees will be payable for doing so.

  1. OPTION TO RENEW AGREEMENT

6.1 The Independent Contractor may renew the Agreement for the Further Term subject to the following:

(a) the Independent Contractor must notify the Principal in writing of its intention to renew the Agreement for the Further Term no less than one month’s prior to the expiration of the Term of the Agreement; and

(b) the Further Term will commence on the day after the expiration of the Term of the Agreement; and

(c) the Further Term will be on the same terms and conditions contained in the Agreement, however, the Principal may elect to increase the Fees during the Further Term in its absolute and unfettered discretion.

  1. PERFORMANCE

7.1 The Independent Contractor must act in commercial good faith and ensure that the Services are performed with due care, skill and diligence according to the standards and ethics applicable to the profession and the industry in which the Independent Contractor performs the Services.

7.2 The Independent Contractor agrees to provide the Services to the Principal to the standard required by the Principal and in accordance with such work as the Principal may specify from time to time, but within the scope of the Services provided under this Agreement.

  1. FEES

8.1 At the end of each calendar month, or as soon as reasonably practicable thereafter, the Independent Contractor will provide the Principal with a tax invoice for the Fee.

8.2 The Principal will pay the Fee to the Independent Contractor within thirty (30) days of receiving the tax invoice in the method provided for in Item 2 of Schedule 3.

8.3 The Fee is inclusive of all of the Independent Contractor’s time and costs involved in the performance of Services for the Principal and the Independent Contractor agrees it will not be entitled to any further payment for its Services or any other services performed by it for the Principal unless otherwise agreed between the Parties.

8.4 The Independent Contractor acknowledges that it is not entitled to be paid superannuation or paid leave, including but not limited to annual leave, personal/carer’s leave, parental leave or long service leave by the Principal.

8.5 The Independent Contractor acknowledges that the Fees payable to them by the Principal are not subject to income tax and the Independent Contractor is responsible for any tax payable on the Fees.

8.6 The Independent Contractor is only entitled to invoice the Principal for each day or part day which the Independent Contractor performs the Services for the Principal. For each day or part day the Independent Contractor does not perform the Services for the Principal during the Hours the Fee will be reduced by an amount equal to the proportion of time the Independent Contractor has not provided the Services.

  1. TERMINATION

9.1 Without limiting the generality of any other clause in the Agreement, either Party may terminate the Agreement immediately without notice if the other Party:

(a) is in breach of any term of the Agreement and such breach is not remedied within 30 days of the breach being notified to the other Party; or

(b) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or

(c) ceases or threatens to cease conducting its business in the normal manner.

9.2 Despite clause 9.1, either Party may terminate the Agreement by giving one month’s written notice to the other Party.

9.3 Despite any other clause in the Agreement, at the end of each year that the Independent Contractor has provided the Services to the Principal, the Principal will review the Services in conjunction with any Key Performance Indicators (KPIs) as set by the Principal and amended from time to time. If, in the Principal’s opinion, the Independent Contractor has not adequately met the KPIs then the Principal may terminate the Agreement without notice.

9.4 Subject to clause 9.5, if the Principal sells its Business during the Term or Further Term the Agreement is taken to be terminated on completion of the sale of the Principal’s Business.

9.5 If the Principal sells its business and the Purchaser does not offer the Independent Contractor a role, in any capacity, performing the same or similar Services, the Principal will pay the Independent Contractor an amount equal to 1 month’s Fees.

9.6 If the Agreement is terminated pursuant to clause 9.1, the terminating Party may:

(a) repossess any of its property in the possession, custody or control of the Party at fault; (b) retain any moneys paid;

(c) charge a reasonable sum for work performed in respect of work which no sum has been previously charged;

(d) be regarded as discharged from any further obligations under the Agreement; and

(e) pursue any additional or alternative remedies provided by law.

  1. CONFIDENTIALITY

10.1   The Independent Contractor acknowledges that as the Principal has invested significant time and resources in developing systems and materials, including Confidential Information the Independent Contractor will:

(a) keep confidential all Confidential Information;

(b) not disclose any Confidential Information to any person, except: (i) as required by law;

(ii) with the Principal’s prior written consent; or

(iii) to the Principal’s agents, employees or advisers in the proper performance of the Independent Contractor’s Services, whether under the Agreement, or otherwise;

(c) use its best endeavours at all times to prevent the use or disclosure of any Confidential Information to or by third parties;

(d) maintain proper and secure custody of all Confidential Information; and

(e) not use any Confidential Information other than in connection with the provision of the Services to the Principal.

10.2   If Confidential Information lawfully comes into the public domain, other than as a result of the Independent Contractor’s breach of a term of the Agreement, then to the extent that the Confidential Information is public, and subject to the terms of the Agreement, the Independent Contractor’s obligation to keep such information confidential ceases.

10.3   In the event of uncertainty as to whether:

(a) any information is Confidential Information; or

(b) any Confidential Information is lawfully within the public domain;

such information is deemed to be Confidential Information and not within the public domain, unless the Principal advises the Independent Contractor in writing to the contrary.

10.4   The Independent Contractor will immediately deliver all Confidential Information which is in physical form, including but not limited to all copies of computer files (whether on magnetic media or otherwise) to the Principal:

(a) upon the expiration of the Agreement or the Further term, if applicable; or

(b) at any time the request of the Principal.

10.5   The Independent Contractor’s obligations in relation to Confidential Information will:

(a) survive after the termination or end of the Agreement or the Further Term, if applicable;

and

(b) be enforceable at any time at law or in equity and will continue to the benefit of and be enforceable by the Principal.

10.6   If the Independent Contractor does anything to develop, enhance or upgrade anything included in the Confidential Information during the Agreement or the Further Term, if applicable, this will be done for and on the Principal’s behalf, and the Independent Contractor’s obligations of confidentiality will apply to the developments, enhancements, or upgrades.

  1. INSURANCE

11.1   The Independent Contractor will immediately notify the Principal of an event that is likely to give rise to a claim under an insurance policy or arrangement in connection with the Services.

  1. INDEMNITY

12.1   The Independent Contractor agrees to indemnify and keep the Principal indemnified from and against all costs, claims, losses, damages, demands, liabilities, causes of action, proceedings, awards, or judgments suffered or incurred by or brought or made against the Principal to the extent that they are caused or contributed to by the Independent Contractor’s:

(a) breach of any provision of this Agreement; or

(b) acts or omissions including without limitation, any act or omission which may contravene the provisions of any legislation.

  1. RESTRAINTS

13.1   The Independent Contractor acknowledges that:

(a) during the Term and, if applicable, Further Term, the Independent Contractor will have access to the Principal’s Clients, and will gain knowledge of the Principal’s business systems, methods, plans and pricing;

(b) the Independent Contractor will also gain access to the Principal’s Confidential Information; and

(c) damages alone would not be a sufficient remedy for a breach by the Independent Contractor of the restraints in this clause. The Principal will be entitled to seek orders restraining the Independent Contractor from any breach of these obligations in addition to any orders that a court may make for any other remedy, including the payment of costs, interest and damages.

13.2   Upon the termination of the Agreement for any reason whatsoever, the Independent Contractor will not without the Principal’s written consent:

(a) entice away from the Principal any employee or contractor of the Principal’s:

(i) with whom the Independent Contractor has had dealings on behalf of the Principal; or

(ii) in respect of whom the Independent Contractor obtained any Confidential Information or personal information as a result of the Agreement, for the purposes of offering that person work either as an employee or otherwise.

(b) contract, offer professional services, market to, undertake professional services, or otherwise deal with any of the Principal’s Clients that the Independent Contractor had dealings with during the Term and, if applicable, the Further Term;

(c) solicit any of the Principal’s Clients that the Independent Contractor had dealings with during the Term or, if applicable, Further Term of the Agreement.

13.3   These restrictions will continue for the maximum enforceable period of: (a) 9 months, or if this is held to be unenforceable then:

(b) 6 months, or if this is held to be unenforceable then;

(c) 3 months;

from the date of the termination of the Agreement.

13.4   These restrictions will apply to greatest enforceable area within:

(a) 50km of the Location of Services, or if this is held to be unenforceable then;

(b) 20km of the Location of Services.

13.5   If any provision of these restraints or any part of them is held to be unenforceable, void or voidable for any reason, then that provision or part will be severed and the remainder of the restraint will continue in full force and effect.

  1. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement between the Principal and the Independent Contractor in respect of the matters dealt with in this Agreement, and supersedes all prior agreements, understandings and negotiations in respect of the matters dealt with in the Agreement.

  1. NOTICES

15.1   Notices under the Agreement may be delivered by hand, by mail by email or by facsimile to the addresses specified in Item 1 of Schedule 1.

15.2   Notice will be deemed given:

(a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;

(b) in the case of posting, three days after dispatch;

(c) in the case of email, immediately upon sending, provided that a copy of the email is retained as a “sent item” showing the transmission address and the date and time of transmission;

(d) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.

  1. GOVERNING LAW

This Agreement will be governed by, construed, and take effect in accordance with the laws in force in Queensland,  Australia, and the parties submit to the non-exclusive jurisdiction of the Courts exercising jurisdiction in Queensland, Australia.

  1. SEVERABILITY

17.1   If a provision of the Agreement is found to be invalid, unenforceable, illegal, or contrary to public policy, the invalidity, unenforceability or illegality will nullify the effect of that provision only.

17.2   Such a provision will then be deemed to be deleted or modified to the extent necessary to enable the remainder of the provision to remain valid or enforceable, and it will not otherwise in any way nullify the effect of any other provision of the Agreement.

  1. WAIVER

18.1   No right under the Agreement shall be deemed to be waived except by notice in writing signed by each Party.

18.2   A waiver made by either Party pursuant to clause 18.1 will not prejudice any rights in respect of any subsequent breach of the Agreement by either Party.

18.3   Subject to clause 18.1, any failure by either Party to enforce any clause of the Agreement, or any forbearance, delay or indulgence granted by either Party, will not be construed as a waiver of the Party’s rights under the Agreement.

  1. VARIATION

19.1   The provisions of the Agreement shall not be varied, except by agreement in writing signed by the Parties.

19.2   A variation shall not be effective unless the Parties agree in writing as to the effect of the variation, including the impact of the variation on the obligations of either Party under this Agreement.

SCHEDULE 1
ITEM 1:

Address for Notices                                        Independent Contractors Email

ITEM 2:

Term                                                                  1 year from the Commencement Date

Further Term                                                   1 year

SCHEDULE 2 – SERVICES
ITEM 1:

Description

Services may include:

  • New business development on behalf of the Principal;
  • Referral of existing contacts;
  • Outbound telemarketing;
  • Booking of meetings with new sales prospects;
  • Attendance of sales meetings;
  • Ongoing client relationship management;

which may be altered from time to time by agreement between the parties.

SCHEDULE 3 – FEES
ITEM 1:

Fee                                                                        10% Sales Commision

Payment Terms: To be paid 30 days from the end of the month the Principal receives payment in advance from the Client.

ITEM 2:

Manner of Payment: Electronic transfer of funds into the Independent Contractor’s nominated bank account or other similar facility.